Abstract
The right to abortion is a very belligerent and emotionally charged topic .Whether it should be given as matter of reproductive right; should be allowed only under certain circumstances or needs a complete blanket ban is a matter of never ending debate. The major debate revolves around the topic after what time foetus should be considered as a living organism and should have all the rights that are available to every individuals .In India Article 21 enshrines Right to life and personal liberty where life is interpreted as of choice and with dignity and issue of abortion is ponder as a perplexing amalgam of ethical, spiritual, and legal victories. Different country have different rules and laws governing the act of abortion where some consider it as matter of right of individual (particularly West) and some as sin.
Keywords
Right to abortion; Section 312 IPC; Article 14, 21 of Indian Constitution; Medical Termination of Pregnancy Act 1971; Medical Termination of Pregnancy Act 2021
Introduction
Right to abortion is a multifaceted and contentious topic touching upon the cornerstones of individual autonomy, their reproductive choices and social ethics.
One the one hand, where it is argued that whether to continue the pregnancy or terminate it is a question of individual personal autonomy and their reproductive rights as its restriction may lead to adopting unsafe measures of abortion which may have adverse effect on individuals physical and mental health .On the other hand it is vehemently opposed on ethical and religious ground where adopting abortion is considered equivalent taking human life.
This complex issue which involves mixed question of individual autonomy and their reproductive right along with emotion of society and ethical values needs determination of various issues like when life begin, role of government in framing various policies and law relating to reproductive rights and preservation of social and human values.
Research Methodology
The research paper titled as ‘Constitutionality of abortion laws in India’ aims to cover the existing position of abortion law in country and for this emphasis has been laid upon the both quantitative and qualitative aspects of the matter . Secondary sources such as newspaper reports, legal articles, research papers, encyclopedias and books have been utilized by the author. Other foreign legislations have also been studied to provide a comparative study of laws across the world.
Review of Literature:
Prior to the enforcement of Medical Termination of Pregnancy Act 1971, Abortion was considered as an illegal activity in India and was punishable under Section 312 of I.P.C which criminalises causing miscarriage and prescribes punishment of 3 years and if women is quick with child (at advance stage of pregnancy) this may extend upto 7 years. On 1stApril 1972 MTP Act came into force and U/s 3 of Act termination of pregnancy for certain categories of women were legalized on the recommendation of one registered medical practitioner where length of pregnancy does not exceed 12 weeks and of two registered medical practitioner where it ranges from 12-20 weeks this include:-
- Where it put the life of women giving birth in jeopardy or grave disorder of physical or mental health of mother
- Where pregnancy has been caused because of failure of birth control measures.
- Or Where there are chances of foetus abnormalities.
However the consent of women is must in any case of her abortion expect where she is not mentally fit to give her consent.
Medical Termination of Pregnancy Act 2021
To fulfill the lacunae of Act of 1971 this Amended Act has been brought enforce where mainly focuses on:
- Identity of women undergoing the process of termination of pregnancy should not to
- Provision of abortion for survivor of rape, minor and differently abled women were introduced.
- Opinion of only one provider will be required up to 20 weeks of gestation and of two providers for termination of pregnancy of 20-24 weeks of gestation.
Arguments in favour of abortion
- Abortion is safe medical practise
The death rate for legal abortion is 0.7 deaths for every 100,000 abortions. However, in contrast childbirth has nine deaths per 100,000 deliveries[1]. Thus it is clearly, evident that when performed by trained medical professionals in a safe and legal environment, is generally considered as a safe medical procedure.
- Ban on abortion is denial to reproductive autonomy
Right to abortion allows individuals to have control over their own bodies and reproductive choices. It empowers people to make decisions about when and if they want to become parents, which can be crucial for their overall well-being.
- Gender equality
Many as an important component of gender equality view the right to abortion. It ensures that individuals, regardless of their gender, have the same ability to control their reproductive choices, enabling them to participate fully in society and pursue their goals.
Arguments advanced against right to abortion
- Abortion equivalent to murder.
When the life actual begins there Is no consensus regarding this between department of medicine, theology, and philosophy thus when sperm fuses with ovum in fallopian tube a beginning of life could be considered or not can’t be said .According to the principle of natural law taking someone life even if unborn would amount to murder.
- Increased access to birth control make abortion unnecessary.
Abortion rates in the United States have fallen at what the CDC called a “slow yet steady pace” since a peak in 1981. That year there were 29.3 abortions per 1,000 women aged 15-44. The rate fell to 11.4 abortions per 1,000 women in 2019.[2]
Right of Unmarried women to access abortion
While allowing unmarried women to terminate her pregnancy even after 20 weeks of gestation SC in his judgement has observed that : “Prohibiting single or unmarried pregnant women with pregnancy between 20-24 weeks from accessing abortion while allowing married women would to have would be right to equality conferred by Article 14 of the Indian Constitution and .[3] The court noted that section 3 of Medical Termination of pregnancy Act 2021 provides for the word women and partner and not married women and husband thus the intend of the legislature is to include both married and unmarried women in its ambit thus breaking patriarchal stereotype the court has extend the scope of abortion for unmarried women also.
Judicial pronouncements:
In X v. the Principal Secretary Health and Family Welfare Department & Another SC observed Every pregnant person in India, including transgender and gender variant people, has a right to reproductive autonomy. Everyone has a right to reproductive health, which includes having access to inexpensive, effective, and safe family planning methods, contraception, and sex education. Women alone are responsible for deciding whether to carry a pregnancy to term or to end it. The court also noted that marital rape is included in the definition of rape in the law, and that any woman who has experienced domestic abuse or who has gotten pregnant unintentionally is entitled to have the pregnancy terminated.
In the another landmark case of Suchita Srivastava v. Chandigarh Administration the Supreme Court has unequivocally and emphatically declared that a woman’s reproductive autonomy is a basic right to privacy guaranteed under Article 21 of constitution and that the decision about whether or not to have a child should be made solely by her, with no interference from the government.
Further in Dr Mangla Dogra & Others v. Anil Kumar Malhotra & Others upheld the inalienable right and agency of a woman to seek an abortion on her own irrespective of the consent of her husband. The Court considers the consent form contained in the MTP Act and finds that the Act “neither expressly nor implicitly allows for the express or implied permission of the spouse.”
Challenges in legalising abortion in India
Sex selective Abortion
Sex-selective abortions refer to the practice of terminating a pregnancy based on the sex of the foetus. This means that if parents have a strong preference for a child of a particular gender, they may choose to undergo an abortion if they find out through prenatal testing that the foetus is of the undesired sex. This practice is controversial and raises ethical, social, and gender-related concerns.
The major factors for adopting the practice of sex selective Abortion are
- Gender biasness: Some communities have a strong preference for specific gender and this lead to adoption of sex selective abortion. Nowadays techniques like ultrasound have become very popular in determining the sex and monitoring its growth. Ultrasound equipment is now widely available, and sex-selective abortions are on the rise. At the same time, it is difficult to prove that an abortion was performed because the foetus was a female.
- Ethical and Legal Issues: Sex-selective abortions are controversial and raise ethical and moral concerns. They are considered a form of gender-based discrimination and a violation of women’s reproductive rights. Some countries and regions have banned the practice, while others have implemented strict regulations to prevent it.
- Cultural and Social Factors: It’s essential to recognize that sex-selective abortions are deeply rooted in cultural and societal norms. Addressing this issue requires not only legal measures but also changes in attitudes and beliefs about gender roles and the value of girls and women.
Shortcoming of Medical termination of pregnancy Act 2021
Overlapping with POCSO ACT 2021
The provision of MTP Act is overlapping with POCSO where the provision of MTP Act provides that identity of person undergoing in termination of pregnancy should not be disclosed to any person except those whose are authorised under the law for the time being in force ,whereas the provision of POCSO states who so ever witness any sexual Act with the minor must inform about it to concerned authority and failing could result in prosecution of person .Thus when the rape victim (minor girl) consults medical professionals for termination of pregnancy then as per the statutory requirement these practitioners are obliged to inform the police authorities or juvenile police unit about the incident. Consequently, with the fear of being ostracised from society, such families abstain from consulting medical practitioners and resort to illegal or unsafe methods of abortion, thereby jeopardising the innocent life[4] .
Why the amendments to medical termination of pregnancy failed to go far enough?
Amendments in Medical Termination of Pregnancy Act is without a doubt is one of the most laurels in the realm of women empowerment and giving them right to decide about their reproductive right and health. Despite these welcoming efforts this amendment fails to improve prevailing practices of unsafe abortion and its some reason are mentioned below:
- Time frame for Medical Board’s decision not specified
There is no prescribed time period in which the medical practitioners have to give their opinion sometimes due to the procrastination on their part create further complicacy in pregnancy .
- Medical practitioner have final say and not mother
The act provides for opinion of registered medical practitioner as a final say on question whether abortion should be done or not and opinion of mother have only secondary role However High Court of Bombay while terminating pregnancy of 33 weeks held that the decision to terminate a pregnancy is of women alone after severe abnormality is found in foetus.[5]
- Lack of registered medical practitioner
Safe abortion is reproductive health measures, which allows women to avoid unintended pregnancy under particular condition without jeopardising her well-being and taking into consideration his own physical and mental state.
At present availability to trained medical practitioners is a most critical issue in accessing safe abortion. Lack of registered and trained medical staff forces women to resort to adopting unsafe abortion practices. According to 1992 estimates, there were only 3000trained doctors available, compared to the 21,000 needed to cover all rural PHCs.
In 1997, there were only 163 designated MTP training centres in the country, with a capacity of only 20 doctors per centre per year.[6]
Suggestions
Easy availability of contraception: It has been observed that most of the pregnancies are the results of unwanted pregnancies and these should be made available without any barriers or permissions.
Sex education: Implementation of sex education in order to spread awareness among the people regarding their reproductive health and consequences sexual activity have become need of the hour this would help to reduce the unwanted pregnancy and further abortions
Decriminalise abortion: Pre-requisite of getting approval of registered medical practitioner and following other legal formalities motivates people to resort to unsafe and secretive practices of abortion. This gives a threat to unborn and women’s mental and physical health.
Support for Pregnant Individuals: Offer support services, such as counselling, financial assistance, and childcare support, to individuals facing unplanned pregnancies to help them make informed decisions and feel supported regardless of their choice.
Enhancing medical and clinical facilities: A trained health care provider, community health worker, or volunteer with extensive knowledge and experience of various methods of abortion should provide every pregnant woman and girl who is considering having an abortion with evidence-based information and offer voluntary, non-directive counselling. According to a February 2018 announcement by the Ministry of Health and Family Welfare, 150,000 health and wellness centre s (HWCs) offering “comprehensive primary healthcare services” would be created by transforming current primary health centres (PHCs) and sub centres (SCs).[7]
Ensure that health care practitioners render post‐abortion care within their means, without regard to whether they as individuals object to abortion. A care provider who invokes conscientious objection to participating in inducing abortion cannot invoke such objection to render clinically indicated post-abortion care. Ensure individuals understand that, by providing post-abortion care, they are not a participant nor complicit in the prior acts that caused the need for such care.
Conclusion
Every woman has the freedom to choose how to manage her reproductive autonomy, but it is contested whether this autonomy can be prolonged to the point where it could put another person’s life in danger. A woman has a natural responsibility to provide the greatest upbringing for her children, but occasionally, due to ignorance or wilful indulging, they result in unwanted pregnancies, and in such situations, complicated legal procedures require If abortion is outlawed or severely restricted, we will go back to the era of “back-street abortions.” In the past this has been accompanied by wild claims of the risk to women’s health from these procedures. The women resort to some unhygienic measures to abort the foetus .Law should be such which respect the autonomy of existing one but without compromising with the rights of unborn. There is no point in giving right to mother to destroy the foetus without sufficient cause especially when it was intended to occur.
[1]Zane, Suzanne. “Abortion-Related Mortality in the United States 1998–2010.” NCBI, https://www.ncbi.nlm.nih.gov/pmc/articles/PMC4554338/. Accessed 18 September 2023.
[2] Elizabeth Weise, “How Many Abortions Are Actually Performed in the US? Rates Have Declined for Decades.,” usatoday.com, sept 15, 2023
[3] India today. (2023, 09 15).https://www.indiatoday.in/law/story/supreme-court-abortion-married-unmarried-women-legal-safe-medical-termination-pregnancy-2006116-2022-09-29
[4] Padma Bhate Deosthali & Sangeeta Rege, “Denial of Safe Abortion to survivors of Rape in India”, The National Centre for Biotechnology Information (July 26, 2021 00:43), (last visited on September 15, 2023).
[5] ABC vs. State of Maharashtra (20.01.2023 – BOMHC) : MANU/MH/0689/2023
[6] Government of India, “Rural Health Statistics” (Ministry of Health and Family Welfare, Statistics Division (2018-19)
[7] Government of India, “Rural Health Statistics” (Ministry of Health and Family Welfare, Statistics Division (2018-19)
Name: Kartikey Mishra
College: Law centre-2 University of Delhi